THIS paper is a rather tentative examination of the
shifts in the way sexual harassment has been classified in state records
with the aim of regulating crime as an effect of the women’s movements (in
India and globally). In Indian criminal law, sexual harassment of women has
not been enunciated as a juridical category of crime. It was only in 1997
that, in the realm of juridical interpretation, the object sexual
harassment of working women was named and defined (See Vishakha and Anrs
v. Union Of India 1997).

This does not imply that there are no related laws in the
Indian Penal Code (IPC) that may be evoked when a woman is sexually
harassed. However, these related laws are framed as offences that either
amount to obscenity in public or acts that are seen to violate the modesty
of women under sections 294,1 3542 and 5093
of the IPC. While section 294 IPC is a law applicable to both men and women,4
the latter two are specifically oriented towards women.5

W

hile legal
definitions refer to crimes that outrage the modesty or insult women, in
many Indian states the category of eve teasing of women finds popular
usage. Eve teasing (an English phrase) refers to all forms of harassment
women face in public spaces that are considered trivial, funny and part of
everyday life, thus acting as normal mechanisms legitimizing harassment by
positioning the very presence of women in public spaces as ‘provocative’.
Eve teasing as a cognitive category and culturally sanctioned practice
denotes the tensions that inhere in the manner in which the private and the
public as gendered domains are constantly redefined. It normalizes and
escalates violence against women in public spaces while simultaneously
making invisible forms of violence in the domestic arenas as the distinction
between the two domains is increasingly challenged.

E

ve teasing,
however, is not a legal category. Yet at the level of implementation, the
police’s translations in interpreting crimes move between legal and
cultural categories, thereby proffering an important resource in the
analysis of the contestation around sexual harassment. To access the
registers on which this translation proceeds, this paper chooses to examine
one of the ways in which the IPC crimes, sections 354 and 509, have been
classified and documented as ‘crimes against women’, in the Crime in
India Reports published by the Crimes Records Bureau. The very
classification of crimes act as a source that indicates the semantic shifts
that have occurred in the articulation of sexual harassment, signifying the
influence of the Indian women’s movement and the global discourses on
women’s rights.

The challenge to the cultural perception of sexual
harassment as eve teasing first came from the women’s movements in India.
Post the 1980s campaigns against rape leading to the challenge and
subsequent amendment of the rape law in 1983, it was recognized that many
forms of violence against women are normalised by both societal discourses
and state laws. The state, i.e., the law came to be constituted as a
powerful signifier of patriarchy in the 1980s.

Laws related to sexual harassment have come under severe
criticism from the women’s movements in India (see Agnes 1992, R. Kapur
and S. Khanna 1996). The popular category of eve teasing was also critiqued
as a mechanism of normalizing violence against women. Sexual harassment was
defined as a paradigmatic act of violence against women, necessary for
sustaining patriarchy. It was held that violence against women is a
political act of oppression rather than an outcome of perverse sexuality by
a few men. Sexual harassment was posed as a normal phenomena rather than
pathological to patriarchal cultures and the state critiqued for normalizing
sexual harassment.

T

here have been
numerous campaigns6 and legal interventions7 against
sexual harassment, most recommending reform of the law. The recent judgment
on sexual harassment of working women pronounced by the Supreme Court in
1997 has been an important legal event, marking the emergence of judicial
activism in the arena of gender justice. This dominance of feminist
jurisprudence has raised many questions about the deployment of law and
judicial activism as mode of feminist praxis (see Agnes 1988, 1992, Baxi
2000, Menon 2000, Mukhopadhyay 1998).

The judicial activism followed the gang rape of a sathin
in 1992, who as part of the women’s development programme was trying
to prevent child marriages in Rajasthan. A group of women’s organizations
came forward to file a public interest litigation (PIL) in the Supreme
Court. The PIL argued that there was a need for legal intervention to ensure
the constitutional rights of women to work in a violence-free work
environment. In 1997 a judgment was passed that recognized sexual harassment
at the work place as a violation of the constitutional rights of women and
outlined guide-lines for the prevention, deterrence and redressal of sexual
harassment. This was a very important legal event that has provided working
women the legal force to bolster their demands.

S

everal women’s
groups have suggested that sections 354 and 509 of the IPC be repealed, and
the offences incorporated in a comprehensive bill on sexual assault. The
substantive aspects of the two laws were challenged as it was held that
terms like ‘outraging the modesty’ results in moralistic interpretations
that regulate women’s behaviour rather than act to uphold women’s
rights. It has also been suggested that the offence described in section 294
(making obscene gestures, etc., in public spaces) ought to be repealed and
instead covered by a new provision defining sexual assault (see Kapur and
Khanna 1996). While these sections have attracted the demand for legal
reform, there has been a simultaneous move to critique and mobilize against
eve teasing as a cultural form of sexual harassment of women.

E

ve teasing lives
in post-colonial India as a cognitive category that refers largely to sexual
harassment of women in public spaces, thereby constituting women as ‘eves’,
temptresses who provoke men into states of sexual titillation. This popular
perception of sexual harassment posits the phenomena as a joke where women
are both a tease and deserve to be teased. By treating sexual harassment as
eve teasing, structural violence against women is disguised as an
individualized act of deviancy categorised as natural heterosexist male
behaviour towards women who provoke men.

However, in positing women in public spaces as
temptresses, the discourse on eve teasing does not even begin to address the
sexual harassment faced by sex workers. Their occupation already defines
them as temptresses, and it is in comparison to the stigmatized status of
sex workers that women in other kinds of public spaces are evaluated. Nor
does the discourse address the sexual harassment faced by women at home. The
grammar of this discourse then rests on a primary classification between
good and bad women, which alone makes it possible for the cognitive category
of eve teasing to derive meaning.

Eve teasing then acts as a control on most women by
censoring their general mobility in and accessibility to public spaces,
thereby affecting their sense of personhood and security. It heightens
feelings of dependency on men for protection even though some women may be
economically or emotionally independent. It often adds to the traumas
experienced in other spaces, be it other work places or in the domestic
sphere, making the experience of male violence a rather seamless and
everyday affair. Women too internalize the idea that eve teasing is normal,
harmless and often deserved.

In 1995-96, a group of students and teachers in Delhi
University conducted research by way of survey and questionnaires to
demonstrate the prevalence, nature and extent of sexual harassment in the
university. The hope was that it would help convince the university
administration to streamline the institutional mechanisms of redressal and
complaint resolution.

T

he survey
conducted by the Gender Study Group among students in the university found
that most women respondents felt that eve teasing constituted male behaviour
that could be overlooked and ignored; it amounted to sexual harassment only
when it crossed the threshold of their tolerance. Verbal harassment tended
to be classified as eve teasing and physical harassment or sexually explicit
behaviour as sexual harassment. They distinguished the two by the harm
caused to them by each – eve teasing as largely harmless and sexual
harassment as harmful. Many women respondents spoke of having developed a
threshold of indifference or tolerance as learnt behaviour towards
harassment, and deploying silence or ignoring the harassers as a strategy to
deal with the harassment – since they felt that no one would either take
them seriously or come to assist them.

Both the mediation of the violence of sexual harassment
and the cultural ways of cognizing together constitute the experience of
sexual harassment itself. The division between the home and the street is a
false dichotomy that shields the perpetrators of domestic violence. The
category of eve teasing in constituting the public as the site of violence
par excellence, only re-inscribes the public/private dichotomy. The
discourse of eve teasing, however, is translated into legal categories.

T

hese processes
of translation are often hidden, especially in the thana or the
courts. To analyse one of the ways in which this translation occurs, this
paper turns to one such site, the production of crime statistics by the
government based on police records. For it is here that both the legal and
cultural classifications of sexual harassment are brought to fore.

An analysis of the Crime in India reports reveals that up
to 1991 the classification of offences such as murder, homicide, and
cheating did not document specific crimes against women apart from rape and
kidnapping. The laws related to sexual harassment, sections 354 and 509,
were subsumed under the category of ‘other IPC crimes’. Hence the
statistics were not produced separately in the absence of such a
classificatory grid,8 thereby indicating that harassment of women
was not yet viewed as a serious crime. Tied to this was the allocation of
resources in its management, redressal or prevention.

In 1992, however, a chapter on ‘Crimes against Women’
was added to the Crime in India report ‘to cope with the continuous demand
for data on the burning issue of crimes against women...’ (Crimes in India
1994: i). The report further stated: ‘...crimes against women have become
a matter of growing concern. We are in the process of recognising their
(women’s) rights increasingly and ensuring their due status. The evidence
is everywhere. The voices of women are increasingly being heard in the
Parliament and in the public.’

Thus in 1992 the semantic category of Crimes against
Women was coined and a new set of classificatory practices operationalised
to generate data to cope with the demands thrown up by challenges from the
women’s status discourses. This shift was significant in that it
distinguished general criminality from crimes specifically against women
that violate their rights. This new category was now to act as an index of
the status of women.

T

he report listed
the following crimes against women as enunciated in the IPC.9
Rape (376 IPC); kidnapping or abduction for different purposes (363-373 IPC);
homicide for dowry, dowry deaths or their attempts (302/304-B IPC); torture,
both mental and physical (498A IPC); molestation (354 IPC); and eve teasing
(509 IPC).

The report classified section 354 as molestation and
section 509 as eveteasing. Molestation then was read against those
offences that use force or assault to outrage the modesty of women. Eve
teasing was recognized as a popular form of harassment of women in public
spaces, but the popular understanding that it falls short of molestation
underlay the distinction between molestation and eve teasing. Eve teasing
was then classified as those offences that outrage the modesty of women by
word, gesture or act, thereby reifying popular and normative distinctions
between physical and verbal (or non physical form) of harassment. It
affirmed the idea that eve teasing is not assault and causes lesser ‘hurt’
than molestation.

A

lthough eve
teasing or molestation was not a juridical category, the police interpreted
the law via social categories. As interpreters, the translation of the
social category of eve teasing into a quasilegal category reflects the way
in which the police intervene, recognise and interpret sexual harassment of
women. The way a complaint is read and recorded then resides in the
interstices of social and legal categories.

However, though the 1994 Crimes in India Report continued
to classify 354 as molestation, it categorized Sec. 509 as sexual harassment
(see table). It is significant that this category was footnoted to
explicitly say: ‘referred in the past as eve teasing.’ Thus the social
contestations are read into the legal categories making eve teasing a matter
of the past.

The 1995 report, went onto argue: ‘The gender
difference and bias perceived as existing globally places women all over the
world at disadvantageous positions... Notwithstanding the equality
guaranteed in the Constitution, for many women life is stalked by various
threats of violence. ...The recent UNDP report states that "even under
law, the equality of women is not yet assured in many societies let alone in
practice."

In India, women guaranteed equality, freedom, opportunity
and protection by the Constitution and several legislations, nonetheless
continue to be victims of domestic violence, family violence, violence in
the community and at workplaces. ...The concern for this major problem amply
justifies isolating all identified crimes where women alone are victims as
"Crimes Against Women" and tackle the same with utmost expediency’
(Crimes in India 1996: 209).

Molestation/Eve Teasing

(S. 354)

Sexual Harassment

(S. 509)

1991

20,611

10,283

1992

20,385

10,751

1993

20,985

12,009

1994

24,117

10,496

1995

28,475

4,756

Source: Crime in India Report. 1995: 222

This semantic shift is significant in its
acknowledgement of the contestation over women’s presence in public
spaces and the discourse on women’s status. The replacement of eve
teasing with sexual harassment marks a discursive break with the past.
While these translations continue to occur under the same laws which
define women’s modesty as the entity the paternalistic state must
protect, the very discourse which exposed the paternalistic state during
the 1980s is imbibed as categories of legal governance.

W

as the effect
of the women’s movements then one of creating instability in the
interpretation of law? If yes, what is the nature of instability of law?
As we know, law is not monolithic and the evaluation of its promises must
happen simultaneously in different sites. If law is embodied in practices
of policing then we have here an instance where the interpretators of law
engage with ‘episodes of legitimization crises’ and create new modes
of governance under the same set of laws.

Various aspects of policing have come under severe
criticism from the Indian women’s movement in recent years. One of the
biggest problems has been that women’s complaints of rape, molestation
or sexual harassment are routinely disbelieved. Refusal to file complaints
has been documented as a serious problem faced by victim-survivors. It is
thus necessary to look at the police as interpretators, who architect
meaning whilst reading what women define as crimes into legal definitions
of crime. The decline in reported crime as the 1991-95 statistics show in
the case of sexual harassment, is not necessarily an indication of good
policing or reduction in its occurrence. Equally, an increase does not
tell us whether there is a rise in crime or a rise in reporting as the
molestation statistics indicate.

I

t also must be
recognized that the production of statistics act to anchor/determine local
level policing and may influence decisions, viz. not lodging complaints in
order to keep the statistical representation of a crime rate as normalin
a given area, lest individual officers be held accountable for what may be
called a rise in crime rate. For within the institutional hierarchy of
police administration the issue of crime control forms a central concern.
The police also often act as mediators trying to reach a compromise
between the offender and the victim trying to prevent a criminal case.

Crimes against Women cells have been set up to address
the specific crimes against women. An overwhelming number of dowry, and
other cases related to the family are addressed at these cells, although
rape and cases related to sexual harassment are addressed at local police
stations. Government counselling centres have also multiplied. These have
met criticism from activists in cases of domestic violence or cruelty for
manipulating statistics to project a nationalistic picture of India as a
traditional society, a notion traced through the institution of the
family. The emphasis is on reconciliation, which inserts women back into
the heterosexist family and its violence. This strategy of control has
also come under criticism by activists working with sexually harassed
women (see Gender Study Group Report 1996).

T

he production
of statistics narrativise different sets of mediation by the state
depending on the object privileged. If the familial ideology and
traditions of Indian society are seen as important then the semantic
import of crimes against women may be radically different from a viewpoint
that upholds women’s rights sensibility. In looking at such categories
it is important that the production of state statistics also be located in
its context as a practice that more often than not plots women’s status
as a discursive practice of management, control and production of power.

What we then have is official enumeration, based on the
translation of cultural categories into legal categories which splits the
experience of sexual harassment as well as re-interprets legal
definitions. However, the production of statistics representing crime or
crime rates should be viewed as constitutive of ‘documentary practices’
rather than as transparent representations of given set of statement of
facts instrumentally enjoining crime with law.

The statistical mapping of crimes tells a story. They
plot an important aspect of police documentary practices such that the
production of statistics is not mere reportage but an act of active
interpretation of law and current contentions and events in civil society.
The production of police reports as documentary practices does not merely
serve to document women’s status but orders the bureaucratic management
of crime against women, its redressal, deterrence and prevention. At the
same time legal governance is constitutive in that it informs subjectivity
and lives out regulation in new ways under the ‘same’ set of laws.

The debate on whether laws hold out the promise of
justice for women who have suffered violence needs to be complemented with
a critical evaluation of new modes of governance and surveillance which
deploy the very categories and evidence of gender equality brought forth
by the women’s movements in India. The shift from ‘status of women’
to ‘gender equality’ has meant that classifications have altered over
the last 20 years or so, and the strategies of governance have produced a
specific effect of knowledge and power. These shifts in many ways folded
the categories of feminist discourse into governance thereby regulating
violence against women, and created new institutional means of coping with
the demands set forth by the women’s movements. The translation of the
demands of the women’s movements on the issue of sexual harassment into
the politics of governance perhaps divulge processes of law as governance
that are revelatory of both the instability of law as well as its capacity
to stabilize itself.

T

he question
then is whether feminist praxis can counter the capacity of the law to
authorize itself and if so how it may counter law’s ability to dismiss
other discourses that bring it into question (see Menon 2000). While this
is an important debate, it is equally important to examine the discursive
shifts brought about by the women’s movements and look at the specific
formations and transformations that have resulted in the law as a mode of
governance and its effort to authorize itself.

I have made a distinction between legality and
legitimization and hold that the law has been pushed into episodes of
‘legitimization crises’ by the women’s movements in India. This has
been the effect of feminist politics, be it around sexual harassment as I
show in this paper or in other campaigns, not only by producing positing
alternate categories but as law’s alterity. Indeed it is the creation of
new terms of reference that may or may not enter the legal lexicon which
draws the boundaries between that which is sayable and that which is not.
Perhaps, very tentatively, one may suggest that it is in these interstices
of bearing witness and producing an archive, between the creation of new
terms of references and their translation into law and governance that the
feminist politics of justice and emancipation is articulated.

Footnotes:

* This paper forms part of a larger report written for
Patricia Uberoi on the laws pertaining to sexual harassment in India whom
I would like to thank for her comments on the report. I would like to
acknowledge Gender Study Group and Forum against Sexual Harassment at
Delhi University for the discussions and work we have done together. I am
grateful to Suman and Lester for sharing their work on statistical
narratives in the context of immunization projects in India, Ved for
lending me the Crime in India reports, and Veena Das, Deepak Mehta,
Upendra Baxi and Uma Chakravarty for their constant encouragement and
engagement with my work.

1. Section 294 of the IPC holds that:

‘Whoever, to the annoyance of others, (a) does any
obscene act in any public place, or (b) sings, recites and utters any
obscene songs, ballads or words, in or near any public space, shall be
punished with imprisonment of either description for a term that may
extend to three months, or with fine, or with both.’ This provision is
included in Chapter XVI entitled ‘Of Offences Affecting Public Health,
Safety, Convenience and Morals’ and is cognisable, bailable and triable
by any magistrate.

2. Section 354 IPC: Whoever assaults or uses criminal
force on any woman, intending to outrage her modesty or knowing it likely
that he will thereby outrage her modesty, shall be punished with
imprisonment for a term which may extend to two years, or with fine, or
with both.

3. Section 509 (Word, gesture or act intended to
insult the modesty of a woman) is included in Chapter 22 entitled ‘Of
Criminal Intimidation, Insult and Annoyance’, and is cognisable,
bailable and triable by any magistrate. It holds: ‘Whoever, intending to
insult the modesty of a woman, utters any word, makes any sound or
gesture, or exhibits any object, intending that such word or sound shall
be heard, or that such gesture is seen by such woman, or intrudes upon the
privacy of such woman, shall be punished with simple imprisonment for a
term which may extend to one year, or with fine, or with both.’

4. The emphasis on obscenity points towards a code of
norms defining sexuality and its enactment in what comes to be defined as
a public space. The statute does not differentiate between consent and
non-consent between two individuals. It is oriented to a third, the
public, wherein the witnessing of certain forms of sexualised behaviour
amounts to causing annoyance.

5. In Girdhar Gopal (1953) Cr L J 964, it was held that
under section 354 IPC only women possess modesty that may be outraged.
Thus men are inviolate and not the repository of socially recognised
attributes that shames them or society. It is interesting, however, that
the judgment holds that both men and women are capable of outraging women’s
modesty.

6. Delhi based groups initiated campaigns against
sexual harassment of women on trains in 1998. Jawaharlal Nehru University
students in Delhi have been waging a long drawn campaign against specific
episodes of sexual harassment and been pushing for a policy on sexual
harassment. Students of LNJP Medical College in Delhi in March 1996, came
out very strongly against a head of a department for sexually harassing
students. However, the college authorities punished them for daring to
take up the case. Students and teachers in Delhi University have been
pressing for a policy on sexual harassment for more than five years. In
February 1999, a national level consultation took place at Hyderabad to
evolve consensus on policies on sexual harassment in all Indian
universities.

7. In August 1996, for example, K.P.S. Gill, former
Director General of Police of Punjab was sentenced to three months of
rigorous imprisonment, two months of simple imprisonment and fine for
sexually harassing Rupan Deol Bajaj, an Indian Administrative Service
officer of the Punjab cadre. She filed a complaint after Gill molested her
at a party.

8. The Delhi Prohibition of Eve Teasing Act 1988
defined eve teasing as a non-bailable offence. For a statistical profile
on the number of complaints and convictions between 1990-95, see Shobna
Saxena (1995: p. 225).

9. Importation of girls (upto 21 years of age) (366 IPC)
was added in 1994.

Flavia Agnes, ‘Violence Against Women: Review of
Recent Enactments.’ In Swapna Mukhopadhyay, In the Name of Justice:
Women and Law in Society. Manohar, Delhi,1988, pp. 81-116.

Upendra Baxi, ‘The Avatars of Indian Judicial
Activism: Explorations in the Geographies of [In]Justice.’ In S.K. Verma
and Kusum (eds.), Fifty Years of the Supreme Court of India: Its Grasp
and Reach. Oxford University Press, New Delhi, 2000, pp. 156-209.